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On April 9, 2015 the NS Supreme Court decided a person’s express wish as stated in a valid personal directive – and not what is in her best interests – carries the greatest weight in the first decision by a court considering the NS Personal Directives Act. The decision in B.M. v. K.S. makes it clear that personal directives are powerful tools for anyone who will face a period of vulnerability due to incapacity. This drives home the point that people wishing to make personal care directives and those who draft them need to choose –their words and those appointed – carefully. It’s relevant beyond NS because many other Canadian Provinces and Territories either have comparable legislation or permit people to make healthcare directives by contract.

Mrs. L. signed a valid personal directive under the NS Act naming her son as her delegate. In it she “express[ed] the wish” that her delegate and her attorney (under her Enduring Power of Attorney, in this case a different person than her delegate under her Personal Directive) ensure she was “able to live in [her] house for the rest of [her] life” with appropriate care, “no matter what [her] physical or mental condition might be”. Mrs. L. remained in her home with full-time care. She subsequently lost capacity and the personal directive came into effect. Eventually, Mrs. L’s delegate wanted to move his mother to a nursing home, believing it in her “best interests” due to her declining health. But her attorney objected because it was contrary to her wishes in the personal directive, and she could still afford homecare. Her delegate asked the Court for instructions and to order that her wish to be cared for at home in her personal directive no longer be effective. The Court decided Mrs. L.’s personal directly clearly set out what she wanted – and that was to stay put:

“Wishes” v. “Instructions”. The delegate said this was just Mrs. L.’s “wish”, not binding in the way an “instruction” is. The Court noted that several key parts of the Act use both “wishes” and “instruction” without any differentiation, deciding that “in this particular case” it didn’t matter: it was a “clear, important and unequivocal direction” to her delegate – and under the Act, he must follow it.

“Best Interests” v. Express Wishes. The delegate also said it was in Mrs. L.’s “best interests” to move her. The Court said that what was in Mrs. L.’s “best interests” was not for it to decide: her express wish was to remain in her home so long as it was possible, and it was still possible. This wish prevailed.

This decision makes it clear that personal directives are powerful tools for anyone who will face a period of vulnerability due to incapacity. And this drives home the point that people wishing to make personal care directives – and those who draft them – need to choose carefully:

“Wishes” might not be granted. The Court’s decision that “in this particular case” there’s no real difference between a “wish” and an “instruction” leaves the door open for there to be a difference. In Provinces where there is legislation, the choice of words could very well make a difference, depending on the legislation and how courts have interpreted it. Similarly, where appointing a delegate for personal care decisions is permitted by contract like in NB (where there’s no specific legislation for personal health care direction beyond a provision in the Infirm Persons Act permitting a person to appoint a person to hold power of attorney to make “personal care” decisions but without specifying its contents), the choice of words could also make a difference: it is basically a matter of contractual interpretation. So choose your words carefully.

Attorneys and Delegates and Beneficiaries. Mrs. L. appointed one of her sons as the delegate for her personal care decisions under her Personal Directive, and others – a trust company and an individual who knew her – as her financial attorneys under an Enduring Power of Attorney. Both the delegate son and his brother agreed on the move, but the individual attorney opposed it; if both were the same, Mrs. L. might have been moved despite her “wish” to say home. In many cases, that same person might also be a beneficiary of the maker’s estate – with a vested interest in preserving that estate despite the maker’s wishes (which could be costly to fulfill). So choose your people carefully too.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.